CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated December
31, 1996, by and among Crestar Capital Trust I, a Delaware business trust (the
"Trust"), Crestar Financial Corporation, a Virginia corporation registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended
("Crestar") and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx Brothers Inc. and UBS
Securities LLC (collectively, the "Purchasers"), purchasers of the 8.16% Capital
Securities of the Trust.
1. CERTAIN DEFINITIONS. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
(a) "COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the
Debenture Exchange and Registration Rights Agreement in respect of the
Debentures dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(c) "DEBENTURES" means the 8.16% Junior Subordinated Deferrable Interest
Debentures due December 15, 2026 of Crestar, to be issued pursuant to the
Indenture.
(d) "EFFECTIVE TIME", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "EXCHANGE DEBENTURES" has the meaning set forth in Section 2(a)
hereof.
(g) "EXCHANGE GUARANTEE" has the meaning set forth in Section 2(a)
hereof.
(h) "EXCHANGE OFFER" has the meaning set forth in Section 2(a) hereof.
(i) "EXCHANGE REGISTRATION" has the meaning set forth in Section 3(c)
hereof.
(j) "EXCHANGE SECURITIES" has the meaning set forth in Section 2(a)
hereof.
(k) "GUARANTEE" means the Guarantee of Crestar with respect to the
Securities, to the extent set forth in the Guarantee Agreement.
(l) "GUARANTEE AGREEMENT" means the Guarantee Agreement dated December
31, 1996 between Crestar and The Chase Manhattan Bank, as Guarantee Trustee
(together with its successors and assigns "Guarantee Trustee"), for the benefit
of the holders of the Securities.
(m) "GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the
Guarantee Exchange and Registration Rights Agreement in respect of the Guarantee
dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(n) The term "HOLDER" means each of the Purchasers for so long as it owns
any Registrable Securities, and its respective successors and assigns who
acquire Registrable Securities from time to time, directly or indirectly, from
such person or from any successor or assign of such person, in each case for so
long as such person owns any Registrable Securities.
(o) "INDENTURE" means the Indenture dated as of December 31, 1996,
between Crestar and The Chase Manhattan Bank, as Debenture Trustee, as
supplemented by the First Supplemental Indenture dated as of December 31, 1996
and as further amended or supplemented from time to time.
(p) "ISSUE DATE" means December 31, 1996.
(q) "LIQUIDATION AMOUNT" means the stated liquidation preference of the
Securities.
(r) "NEW GUARANTEE AGREEMENT" has the meaning set forth in the Guarantee
Exchange and Registration Rights Agreement.
(s) The term "PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(t) "PURCHASE AGREEMENT" means the Purchase Agreement dated December 20,
1996, among Crestar, the Trust and the Purchasers.
(u) "REGISTRABLE SECURITIES" means the Securities; PROVIDED, HOWEVER,
that such Securities shall cease to be Registrable Securities when
(i) the Exchange Offer is conducted as contemplated in Section
2(a); PROVIDED THAT, prior to the consummation of the Exchange Offer,
existing Commission interpretations have not been changed such that the
Exchange Securities received by holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt,
transferable by each such holder (other than a Restricted Holder) without
restriction under the Securities Act in the circumstances contemplated by
Section 2(a); and PROVIDED FURTHER, that any Exchange Security received
by a broker-dealer in an Exchange Offer exchange for a Registrable
Security that was not acquired by the broker-dealer directly from the
Trust will also be a Registrable Security through and including the
earlier of the 90th day after the Exchange Offer is completed or such
time as such broker-dealer
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no longer owns such Security; and PROVIDED FURTHER, HOWEVER, that any
such Securities that, pursuant to the last two sentences of Section 2(a)
hereof, are included in a prospectus for use in connection with resales
by broker-dealers shall be deemed to be Registrable Securities with
respect to Sections 5, 6 and 9 until resale of such Exchange Securities
has been effected within the 90-day period referred to in Section 2(a)
hereof;
(ii) in the circumstances contemplated by Section 2(b), a
registration statement registering such Securities (and, in the
circumstances contemplated by Section 2(b), other than a registration
statement filed in addition to the Exchange Offer, also registering the
underlying Debentures and the related Guarantee) under the Securities Act
has been declared or becomes effective and such Securities have been sold
or otherwise transferred by the holder thereof pursuant to such effective
registration statement;
(iii) such Securities are sold pursuant to Rule 144 (or any
successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof, under the Securities Act, is
removed by the Trust or pursuant to the Trust Agreement or such
Securities are eligible to be sold pursuant to paragraph (k) of Rule 144;
or
(iv) such Securities shall cease to be outstanding.
(v) "REGISTRATION DEFAULT" has the meaning set forth in Section 2(c)
hereof.
(w) "REGISTRATION EXPENSES" has the meaning set forth in Section 4
hereof.
(x) "RESTRICTED HOLDER" means (i) a holder that is an affiliate of the
Trust or of Crestar within the meaning of Rule 405 under the Securities Act,
(ii) a holder who acquires Exchange Securities outside the ordinary course of
such holder's business, (iii) a holder who has arrangements or understandings
with any person to participate in the Exchange Offer for the purpose of
distributing Exchange Securities or (iv) a broker-dealer who receives Securities
for its own account but did not acquire the Securities as a result of
market-making activities or other trading activities.
(y) "RESALE PERIOD" has the meaning set forth in Section 2(a) hereof.
(z) "SECURITIES" means, collectively, the $200,000,000 aggregate
Liquidation Amount of the 8.16% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold to the Purchasers, and
any securities issued in exchange therefor or in lieu thereof pursuant to the
Trust Agreement.
(aa) "SECURITIES ACT" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
(bb) "SHELF REGISTRATION" has the meaning set forth in Section 2(b)
hereof.
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(cc) "SPECIAL DISTRIBUTIONS" has the meaning set forth in Section 2(c)
hereof.
(dd) "SPECIAL INTEREST" has the meaning set forth in Section 2(c) hereof.
(ee) "TRUST AGREEMENT" means the Amended and Restated Trust Agreement
dated as of December 31, 1996 among Crestar, as Depositor, The Chase Manhattan
Bank, as Property Trustee (together with its successors and assigns, the
"Property Trustee"), Chase Manhattan Bank Delaware, as Delaware Trustee and the
Administrators named therein.
(ff) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b) below, Crestar and the Trust
agree, jointly and severally, to use their reasonable best efforts to file under
the Securities Act, as soon as practicable, but no later than 150 days after the
Issue Date, a registration statement relating to an offer to exchange (the
"Exchange Offer") any and all of the Securities for a like aggregate Liquidation
Amount of capital securities of the Trust which are substantially identical to
the Securities (and which are entitled to the benefits of the Trust Agreement
which will be qualified under the Trust Indenture Act) except that they have
been registered pursuant to an effective registration statement under the
Securities Act and such new capital securities will not contain provisions for
Special Distributions or provisions restricting transfer in the absence of
registration under the Securities Act (such new capital securities hereinafter
called "Exchange Securities") for any or all of the Registrable Securities. Such
registration statement shall also relate to, and the consummation of the
Exchange Offer shall be conditioned upon the consummation of, an offer to
exchange the Debentures for substantially identical debentures of Crestar
pursuant to the Debenture Exchange and Registration Rights Agreement (the
"Exchange Debentures") and an offer to exchange the Guarantee for a
substantially identical guarantee of Crestar pursuant to the Guarantee Exchange
and Registration Rights Agreement (the "Exchange Guarantee"). Crestar and the
Trust agree, jointly and severally, to use their reasonable best efforts to
cause such registration statement to become effective under the Securities Act
as soon as practicable after the filing thereof. The Exchange Offer will be
registered under the Act on the appropriate form and will comply in all material
respects with all applicable tender offer rules and regulations under the
Exchange Act. Crestar and the Trust further agree, jointly and severally, to
commence the Exchange Offer promptly after such registration statement has
become effective, hold the Exchange Offer open for at least 30 days and the
Trust agrees to
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issue Exchange Securities for all Registrable Securities that have been tendered
and not withdrawn on or prior to the expiration of the Exchange Offer. The
Exchange Offer will be deemed to have been completed only if the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act, it
being understood that broker-dealers receiving Securities will be subject to
certain prospectus delivery requirements with respect to resale of the
Securities. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Trust having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Trust having exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Registrable Securities that have been validly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a date that is at
least 30 days following the commencement of the Exchange Offer. Crestar and the
Trust agree, jointly and severally, (x) to include in the registration statement
a prospectus for use in connection with any resales of Exchange Securities by a
broker-dealer, other than resales of Exchange Securities received by a
broker-dealer pursuant to the Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Trust, and (y) to the
extent any broker-dealer participates in the Exchange Offer and notifies Crestar
or causes Crestar to be notified in writing that it is a participating
broker-dealer, to use their reasonable efforts to keep such registration
statement effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 90th day after the Exchange Offer has been completed or
such shorter period if all Exchange Securities received by such broker-dealer in
exchange for Registrable Securities acquired for their own account as a result
of market-making or other trading activities have been disposed of by such
broker-dealer; and no broker-dealers shall be authorized by Crestar to, and
shall not, deliver such Prospectus after such period in connection with resales
contemplated by this Section 2(a) or otherwise; it being understood that,
notwithstanding anything in this Exchange and Registration Rights Agreement to
the contrary, Crestar shall not be required to comply with any provision of this
Section 2(a) or any other provision of this Exchange and Registration Rights
Agreement relating to the distribution of Exchange Securities by broker-dealers,
to the extent that Crestar reasonably concludes that compliance with such
provision is no longer required by applicable law or interpretation of the Staff
of the SEC. With respect to such registration statement, each broker-dealer that
holds Exchange Securities received in an Exchange Offer in exchange for
Registrable Securities not acquired by it directly from the Trust shall have the
benefit of the rights of indemnification and contribution set forth in Section 6
hereof.
(b) If (i) on or prior to the consummation of the Exchange Offer existing
Commission interpretations are changed such that the Exchange Securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt, transferable by
each such holder without restriction under the Securities Act, (ii) the Exchange
Offer has not been consummated within 210 days following the Issue Date or (iii)
the Purchasers so request (but only with respect to the Securities) within 60
days after the consummation of the Exchange Offer with respect to any Securities
held by them which are not freely transferable following consummation of the
Exchange Offer, in lieu of (or, in the case of
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clause (iii), in addition to) conducting the Exchange Offer contemplated by
Section 2(a), Crestar and the Trust shall file under the Securities Act, as soon
as practicable, a "shelf" registration statement providing for the registration
of, and the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities (or, in the case of clause (iii), of the Securities held
by the Purchasers for resale by the Purchasers), pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the Commission
(the "Shelf Registration"). Unless the Shelf Registration has been filed in
addition to conducting the Exchange Offer contemplated by Section 2(a), the
Shelf Registration shall also provide for the registration of the Debentures
pursuant to the Debenture Exchange and Registration Rights Agreement and for the
registration of the Guarantee pursuant to the Guarantee Exchange and
Registration Rights Agreement. Crestar and the Trust agree, jointly and
severally, to use their reasonable best efforts to cause the Shelf Registration
to become or be declared effective and to keep such Shelf Registration
continuously effective for a period ending on the earlier of (A) the third
anniversary of the Issue Date (or, in the case of clause (iii), the first
anniversary) or (B) the later of (i) such time as there are no longer any
Registrable Securities outstanding or (ii) as required under the Debenture
Exchange and Registration Rights Agreement. Crestar and the Trust further agree,
jointly and severally, to supplement or make amendments to the Shelf
Registration, as and when required by the rules, regulations or instructions
applicable to the registration form used by Crestar and the Trust for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration, and Crestar and the Trust agree, jointly and severally, to
furnish to the holders of the Registrable Securities copies of any such
supplement or amendment prior to its being used and/or filed with the
Commission.
(c) In the event that (i) Crestar and the Trust have not filed the
registration statement relating to the Exchange Offer (or, if applicable, the
Shelf Registration) on or before the 150th day after the Issue Date, or (ii)
such registration statement (or, if applicable, the Shelf Registration) has not
become effective or been declared effective by the Commission on or before the
180th day after the Issue Date, or (iii) any of the Exchange Offer, the exchange
offer contemplated by the Guarantee Exchange and Registration Rights Agreement
and the exchange offer contemplated by the Debenture Exchange and Registration
Rights Agreement has not been completed within 210 days after the Issue Date (if
the Exchange Offer is then required to be made) or (iv) any registration
statement required by Section 2(a) or 2(b) is filed and declared effective but
shall thereafter cease to be effective (except as specifically permitted herein)
without being succeeded immediately by an additional registration statement
filed and declared effective (each such event referred to in clauses (i) through
(iv), a "Registration Default"), then interest will accrue (in addition to the
stated interest rate on the Debentures) at the rate of 0.25% per annum on the
principal amount of the Debentures, and the distributions will accrue (in
addition to the stated distribution rate on the Securities) at the rate of 0.25%
per annum on the Liquidation Amount of the Securities, for the period from the
occurrence of the Registration Default until such time as no Registration
Default is in effect. Such additional interest (the "Special Interest") and such
additional distributions (the "Special Distributions") will be payable in cash
semi-annually in arrears on each June 15 and December 15 in accordance with, and
subject to the deferral provisions of, the Indenture and the Trust Agreement,
respectively.
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Special Interest, if any, and Special Distributions, if any, will be computed on
the basis of a 365 or 366 day year, as the case may be, and the number of days
actually elapsed.
(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. REGISTRATION PROCEDURES.
If Crestar and the Trust file a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, Crestar shall qualify the Indenture, the New
Guarantee Agreement and the Trust Agreement under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of
a new trustee under any of the Indenture, the New Guarantee Agreement or the
Trust Agreement, such new trustee shall be appointed thereunder pursuant to the
applicable provisions thereof.
(c) In connection with the joint and several obligations of Crestar and
the Trust with respect to the registration of the Exchange Securities, the
Exchange Guarantee and the Exchange Debentures, as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, Crestar and the Trust shall, as
soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but no later than 150 days after the Issue Date, a registration statement
with respect to the Exchange Registration on any form which may be
utilized by Crestar and the Trust and which shall permit the Exchange
Offer and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a) hereof, and
use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder, as such
broker-dealer reasonably may request prior
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to the expiration of the Resale Period, for use in connection with
resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus amendment
or supplement or post effective amendment has been filed, and, with
respect to such registration statement or any post effective amendment,
when the same has become effective, (B) of the receipt of any comments by
the Commission and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement
or prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the joint and several
representations and warranties of Crestar and the Trust contemplated by
Section 5 cease to be true and correct in all material respects, (E) of
the receipt by either Crestar or the Trust of any notification with
respect to the suspension of the qualification of the Exchange Securities
and the Exchange Guarantee for sale in any United States jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (F)
at any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that Crestar and the Trust would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to each
such holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post
effective amendment thereto at the earliest practicable date;
(vi) use their reasonable best efforts to (A) register or qualify
the Exchange Securities and the Exchange Guarantee under the securities
laws or blue sky laws of such
8
jurisdiction as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; PROVIDED, HOWEVER, that neither Crestar
nor the Trust shall be required for any such purpose to (1) qualify to do
business in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(g)(vi), (2) consent
to general service of process in any such jurisdiction or (3) in the case
of Crestar, make any changes to its charter or by-laws or any agreement
between it and its stockholders or in the case of the Trust, make any
changes to the Trust Agreement;
(vii) use their reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority, whether
federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Crestar and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option of
Crestar, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Crestar and
the Trust with respect to the Shelf Registration, if applicable, Crestar and the
Trust shall use their reasonable best efforts to cause the Shelf Registration to
become effective to permit the sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution
thereof described in the Shelf Registration. In connection therewith, Crestar
and the Trust shall as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable,
a registration statement with respect to the Shelf Registration on any
form which may be utilized by Crestar and the Trust and which shall
permit the disposition of the Registrable Securities in accordance with
the intended method or methods thereof, as specified in writing to
Crestar and the Trust by the holders of the Registrable Securities and
use their reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable, prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included
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therein as may be necessary to effect and maintain the effectiveness of
such registration statement for the period specified in Section 2(b)
hereof and as may be required by the applicable rules and regulations of
the Commission and the instructions applicable to the form of such
registration statement and furnish to the holders of the Registrable
Securities copies of any such supplement or amendment simultaneously with
or prior to its being used or filed with the Commission;
(iii) comply with the provisions of the Securities Act applicable
to Crestar or the Trust in connection with the disposition of all of the
Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the holders
thereof, set forth in such registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act), if any, thereof, (C) the
sales or placement agent, if any, therefor and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at Crestar's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(iv) who shall certify to Crestar and the
Trust that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other
information and books and records of Crestar and the Trust, and cause the
officers, employees, counsel and independent certified public accountants
of Crestar and the Trust to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred
to in such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; PROVIDED, HOWEVER, that each
such party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by Crestar as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise, except by
disclosure by such party in breach of this Agreement), or (B) such person
shall be required so to disclose such information pursuant to the
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to, and only to the extent
required by, the requirements of such order, and only after such person
shall have given Crestar prompt prior written notice of such
requirement);
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any,
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thereof and confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus amendment
or supplement or post-effective amendment has been filed, and, with
respect to such registration statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the Commission
and by the Blue Sky or securities commissioner or regulator of any state
with respect thereto or any request by the Commission for amendments or
supplements to such registration statement or prospectus or for
additional information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or the
initiation or threatening of any proceedings for that purpose, (D) if at
any time the joint and several representations and warranties of Crestar
and the Trust contemplated by Section 3(d)(xv) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt by either
Crestar or the Trust of any notification with respect to the suspension
of the qualification of the Registrable Securities and the Guarantee for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time when a prospectus is
required to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or
post-effective amendment, or any document incorporated by reference in
any of the foregoing, does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(vii) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder or counsel for the holders of
Registrable Securities, promptly incorporate in a prospectus supplement
or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies should
be included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to
the Liquidation Amount or the principal amount, as the case may be, of
Registrable Securities being sold by any holder or agent or to any
underwriters, the name and description of such holder, agent or
underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities,
to be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
11
(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(d)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and such number of copies of
such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder, and
such other documents, as such holder, agent, if any, and underwriter, if
any, may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder, offered
or sold by such agent or underwritten by such underwriter and to permit
such holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and each of Crestar and the Trust
hereby consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by each
such holder and by any such agent and underwriter, in each case in the
form most recently provided to such party by Crestar and the Trust, in
connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(x) use their reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration statement
and the Guarantee under such securities laws or blue sky laws of such
jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary to enable
any such holder, agent or underwriter to complete its distribution of
Securities pursuant to such registration statement and (C) take any and
all other actions as may be reasonably necessary or advisable to enable
each such holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of Registrable Securities;
PROVIDED, HOWEVER, that neither Crestar nor the Trust shall be required
for any such purpose to (1) qualify to do business in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(x), (2) consent to general service of
process in any such jurisdiction, (3) in the case of Crestar, make any
changes to its charter or by-laws or any agreement between it and its
shareholders or, in the case of the Trust, make any changes to the Trust
Agreement;
(xi) use their reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable
12
the selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business
days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xiv) enter into not more than one underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including (without
limitation) provisions relating to indemnification and contribution
substantially the same as those set forth in Section 6 hereof, and take
such other actions in connection therewith as any holders of Registrable
Securities aggregating at least 25% in aggregate Liquidation Amount, or
in aggregate principal amount, as the case may be, of the Registrable
Securities at the time outstanding shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
PROVIDED, that Crestar and the Trust shall not be required to (i) enter
into any such agreement more than once with respect to all of the
Registrable Securities and may delay entering into such agreement until
the consummation of any underwritten public offering which Crestar and
the Trust shall have then undertaken or (ii) enter into any engagement
letter, agency agreement, "best effort" underwriting agreement or similar
agreement whatsoever with respect to the Registrable Securities, and
PROVIDED, FURTHER that Crestar and the Trust shall not be obligated to
enter into any such agreement with a broker-dealer which results in the
need for a "qualified independent underwriter" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as amended
from time to time (the "Rules and ByLaws of NASD"));
(xv) whether or not an agreement of the type referred to in
Section (3)(d)(xiv) hereof is entered into and whether or not any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
holders of such Registrable Securities and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof substantially the
same as those set forth in Section 1 of the Purchase Agreement and such
other representations and warranties as are customarily made with respect
to the offering of debt securities pursuant to any appropriate agreement
or to a registration statement on the applicable form under the
Securities Act; (B) obtain an
13
opinion or opinions of counsel to Crestar and the Trust substantially the
same as the opinions provided for in Section 5 of the Purchase Agreement
with such additions, substitutions or deletions of such matters as are
customarily covered in opinions for an underwritten offering, addressed
to such holder or holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the effective
date of such registration statement (and if such registration statement
contemplates an underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting
agreement relating thereto) (it being agreed that the matters to be
covered by such opinion shall also include, without limitation, the
absence of governmental approvals required to be obtained in connection
with the Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section (3)(c)(xiv) hereof, except
such approvals as may be required under state securities or blue sky
laws; and the compliance as to form of such registration statement and
any documents incorporated by reference therein and of the Indenture, the
Guarantee Agreement and the Trust Agreement with the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission promulgated thereunder, respectively); and, such
opinion shall also state that such counsel has no reason to believe that,
as of the date of the opinion and of the registration statement or most
recent post-effective amendment thereto, as the case may be, such
registration statement and the prospectus included therein, as then
amended or supplemented, and the documents incorporated by reference
therein (in each case other than the financial statements and other
financial information contained therein) contains or contained an untrue
statement of a material fact or omits or omitted to state therein a
material fact necessary to make the statements therein not misleading (in
the case of such documents, in the light of the circumstances existing at
the time that such documents were filed with the Commission under the
Exchange Act)); (C) obtain a "cold comfort" letter or letters from the
independent certified public accountants of Crestar and the Trust
addressed to the selling holders of Registrable Securities, the placement
or sales agent, if any, therefor and the underwriters, if any, thereof,
dated (i) the effective date of such registration statement and (ii) the
effective date of any prospectus supplement to the prospectus included in
such registration statement or post-effective amendment to such
registration statement; (D) deliver such other documents and
certificates, including officers' certificates, as may be reasonably
requested by any holders of at least 25 % in aggregate Liquidation
Amount, or in aggregate principal amount, as the case may be, of the
Registrable Securities at the time outstanding or the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof to
evidence the accuracy of the representations and warranties made pursuant
to clause (A) above or those contained in Section 5(a) hereof and the
compliance with or satisfaction of any agreements or conditions contained
in the underwriting agreement or other agreement entered into by Crestar
and the Trust; and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in
Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by Crestar and the Trust to amend or waive any provision of
this Exchange and Registration
14
Rights Agreement pursuant to Section 9(h) hereof and of any amendment or
waiver effected pursuant thereto, each of which notices shall contain the
text of the amendment or waiver proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules and By-Laws of NASD)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including, without limitation, by
(A) if such Rules or By-Laws, including Schedule E thereto (or any
successor thereto), shall so require, engaging a "qualified independent
underwriter" (as defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement relating to
such Registrable Securities, to exercise usual standards of due diligence
in respect thereto and, if any portion of the offering contemplated by
such registration statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided
in Section 6 hereof (or to such other customary extent as may be required
by such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules and By-Laws of NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its holders of the Securities
as soon as practicable but in any event not later than eighteen months
after the effective date of such registration statement, an earnings
statement of Crestar and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of Crestar, Rule 158
thereunder).
(e) In the event that Crestar and the Trust would be required, pursuant
to Section 3(d)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, Crestar and the Trust shall without delay prepare
and furnish to each such holder, to each placement or sales agent, if any, and
to each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder and shall
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. Each holder of
Registrable Securities agrees that upon receipt of any notice from Crestar and
the Trust pursuant to Section 3(d)(vi)(F) hereof, such holder shall forthwith
discontinue the disposition of Registrable Securities, pursuant to the
registration statement applicable to such Registrable Securities until such
holder shall have received copies of such amended or supplemented prospectus,
and if so directed by Crestar and
15
the Trust, such holder shall deliver to Crestar (at Crestar's expense) all
copies, other than permanent file copies, then in such holder's possession of
the prospectus covering such Registrable Securities at the time of receipt of
such notice.
(f) Crestar and the Trust may require each holder of Registrable
Securities as to which any registration is being effected to furnish in writing
to Crestar and the Trust such information regarding such holder and such
holder's intended method of distribution of such Registrable Securities as
Crestar and the Trust may from time to time reasonably request in writing, but
only to the extent that such information is required in order to comply with the
Securities Act. Each such holder agrees to notify Crestar and the Trust as
promptly as practicable of any inaccuracy or change in information previously
furnished by such holder to Crestar and the Trust or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities or omits to state any material fact regarding such holder
or such holder's intended method of distribution of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to Crestar and the Trust any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such holder or the distribution of such
Registrable Securities, an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
Each such holder shall comply with the provisions of the Securities Act
applicable to such holder with respect to the disposition by such holder of
Registrable Securities covered by such registration statement in accordance with
the intended methods of disposition by such holder set forth in such
registration statement.
(g) Until the expiration three years after the Issue Date, Crestar will
not, and will not permit any of its "affiliates" (as defined in Rule 144 under
the Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them except
pursuant to an effective registration statement under the Act or any exemption
therefrom; PROVIDED, HOWEVER, that, for purposes of this paragraph, "affiliates"
shall not include the Purchasers or any of their affiliates other than Crestar
and its subsidiaries, officers, managers and directors.
(h) If Crestar and the Trust file with the Commission a registration
statement in respect of the Exchange Offer pursuant to Section 2(a), then
Crestar and the Trust shall also file with the Commission a registration
statement under Section 12 of the Exchange Act and the rules and regulations
promulgated thereunder related to the Exchange Securities (and the Securities
and the Registrable Securities, if any). Crestar and the Trust shall use their
reasonable best efforts to cause such registration statement to become effective
prior to the 120th day of the fiscal year of the Trust next succeeding the
fiscal year in which the Exchange Offer has been consummated.
(i) Crestar and the Trust may require each holder of Registrable
Securities as to which a registration statement is being effected pursuant to
Section 2(a), as a condition to such
16
holder's eligibility to exchange the Registrable Securities for the Exchange
Securities, that such holder furnish to Crestar and the Trust (or an agent
thereof) in writing information as to the number of "beneficial owners" (within
the meaning of Rule 13d-3 under the Exchange Act) on behalf of whom such holder
holds the Registrable Securities that such holder desires to exchange for the
Exchange Securities.
4. REGISTRATION EXPENSES.
If Crestar and the Trust file a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
Crestar agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the performance by Crestar
and the Trust or compliance with this Exchange and Registration Rights
Agreement, including, without limitation, (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities and the Guarantee for
offering and sale under the state securities and blue sky laws referred to in
Section 3(d)(x) hereof, including reasonable fees and disbursements of counsel
in connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, and the certificates representing the Securities and all documents
relating hereto, (d) messenger and delivery expenses, (e) fees and expenses of
the Debenture Trustee under the Indenture, the Issuer Trustees under the Trust
Agreement and the Guarantee Trustee under the Guarantee Agreement and of any
escrow agent or custodian, (f) internal expenses (including, without limitation,
all salaries and expenses of Crestar's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of Crestar and the Trust (including the
expenses of any opinions or "cold comfort" letters required by or incident to
such performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xvii)
hereof, (i) fees, disbursements and expenses of one counsel for the holders of
Registrable Securities retained in connection with a Shelf Registration, as
selected by the holders of at least a majority in aggregate Liquidation Amount,
or the aggregate principal amount, as the case may be, of the Registrable
Securities being registered, and fees, expenses and disbursements of any other
persons, including special experts, retained by Crestar or the Trust in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof, Crestar shall reimburse such person for the full amount of
the Registration Expenses so incurred, assumed or paid promptly after receipt of
a written request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency or brokerage fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above,
transfer taxes on
17
resale of any of the Securities by such holders and any advertising or
solicitation expenses other than expenses specifically referred to above
incurred by or on behalf of such holders in connection with any offers they may
make.
5. REPRESENTATIONS AND WARRANTIES.
Crestar and the Trust, jointly and severally, represent and warrant to,
and agree with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering Registrable Securities, the
Guarantee, if applicable, and the Debentures and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant to
Section 3(d)(ix) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is filed with
the Commission, as the case may be, and, in the case of an underwritten offering
of Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act, the
rules and regulations of the Commission promulgated thereunder and any such
registration statement and any amendment thereto will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
any such prospectus or any amendment or supplement thereto will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and at all times subsequent to the
Effective Time of any such registration statement when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such time
as a notice has been given to holders of Registrable Securities pursuant to
Section 3(c)(iii)(F) or Section 3(d)(vi)(F) hereof until (ii) such time as
Crestar and the Trust furnish an amended or supplemented prospectus pursuant to
Section 3(c)(iv) or Section 3(e) hereof, as the case may be, each such
registration statement, and each prospectus (including any summary prospectus)
contained therein or furnished pursuant to Section 3(c) or Section 3(d)(ix)
hereof, as then amended or supplemented, will conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to Crestar and the Trust by a holder of Registrable Securities or any
placement or sales agent therefor or underwriter thereof expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such
18
documents will contain or contained an untrue statement of a material fact or
will omit or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
Crestar and the Trust by a holder of Registrable Securities expressly for use
therein.
(c) The representations and warranties of the Trust and Crestar contained
in Section V of the Purchase Agreement are true and correct with the same force
and effect as though expressly made at and as of the date hereof.
6. INDEMNIFICATION.
(a) Upon the registration of the Registrable Securities pursuant to
Section 2 hereof, and in consideration of the agreements of the Purchasers
contained herein, and as an inducement to the Purchasers to purchase the
Securities, the Trust and Crestar, jointly and severally, agree to indemnify and
hold harmless each of the holders of Registrable Securities to be included in
such registration, and each person who participates as a placement or sales
agent or as an underwriter in any offering or sale of such Registrable
Securities and each person, if any, who controls such holder, or such placement
or sales agent, if any, or such underwriter, if any, within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each an "Indemnified
Person") as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue
statement of a material fact contained in any registration statement
under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or Crestar to any such holder, agent or
underwriter (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in such registration statement or such
preliminary, final or summary prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission was made in reliance upon and in conformity
with written information relating to such Indemnified Person furnished to
the Trust and Crestar by, or on behalf of, such Indemnified Person
expressly for use in such registration statement or such preliminary,
final or summary prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged
19
untrue statement or omission (except as made in reliance upon and in
conformity with information relating to such Indemnified Person furnished
by, or on behalf of, such Indemnified Person as aforesaid), if such
settlement is effected with the written consent of the Trust and Crestar;
and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by, or on
behalf of, such Indemnified Person as aforesaid) to the extent that any
such expense is not paid under (i) or (ii) above.
provided, however, that indemnification with respect to any prospectus
shall not inure to the benefit of any holder of Registrable Securities or
Exchange Securities from whom the Person asserting any loss, claim, liability,
damage or expense purchased such Securities, if a copy of the Prospectus (as
then amended or supplemented and furnished by Crestar to such holder) was not
sent or given by or on behalf of such holder to such person if such is required
by law at or prior to the sale of such Registrable Securities or Exchange
Securities, as the case may be, and if the prospectus (as so amended and
supplemented) would have cured the defect giving rise to such loss, claim,
liability, damage or expense.
(b) Crestar may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2 hereof and
to entering into any placement or underwriting agreement with respect thereto,
that Crestar shall have received an undertaking reasonably satisfactory to them
from the holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and Crestar
and each person, if any, who controls the Trust or Crestar within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein as furnished by the Trust or Crestar to any such holder, agent
or underwriter (or any amendment or supplement thereto), in reliance upon and in
conformity with written information relating to such holder, or such placement
or sales agent, if any, or such underwriter, if any, furnished to the Trust and
Crestar by or on behalf of such holder, or such placement or sales agent, if
any, or such underwriter, if any, expressly for use in such registration
statement or such preliminary, final or summary prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure
20
to so notify an indemnifying party shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances; provided, however, that when more than one of such
holders, such placement or sales agents, if any, or such underwriters, if any,
is an indemnified party each such holder, placement or sales agent or such
underwriter, as the case may be, shall be entitled to separate counsel (in
addition to any local counsel) in each such jurisdiction to the extent such
holder, placement or sales agent or such underwriter, as the case may be, may
have interests conflicting with those of the other holder, placement or sales
agent or such underwriter, as the case may be. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in this Section 6 is for any
reason held to be unavailable to such holders, such placement or sales agents,
if any, or such underwriters, if any, in accordance with its terms, the Trust,
Crestar and such holders, such placement and sales agents, if any, and such
underwriters, if any, shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Trust, Crestar and such holders, such placement and
sales agents, if any, and such underwriters, if any, in such proportions as is
appropriate to reflect the relative benefits received by the Trust and Crestar
on the one hand and such holders, such placement and sales agents, if any, and
such underwriters, if any, on the other. The relative benefits received by the
Trust and Crestar on the one hand and such holders, such placement and sales
agents, if any, and such underwriters, if any, on the other shall be deemed to
be in such proportion represented by the percentage that the total commissions
and underwriting discounts received by such holders, such placement and sales
agents, if any, and such underwriters, if any, to the date of such liability
bears to the total sales price (before deducting expenses) received by the Trust
and such holders, such placement and sales agents, if any, and such
underwriters, if any, from the sale of such Securities made to the date of such
liability, and the Trust and Crestar are jointly and severally responsible for
the balance. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if such holders, such placement
and sales agents, if any, and such underwriters, if any, failed to give the
notice required under this subsection (c), then the Trust, Crestar and such
holders, such placement and sales agents, if any, and such underwriters, if any,
shall contribute to such aggregate losses, liabilities, claims, damages and
expenses in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Trust and Crestar on the one hand
and such holders, such placement and sales agents, if any, and such
underwriters, if any, on the other in connection with the statements or
omissions which resulted in such liabilities, claims, damages and expenses, as
well as any other relevant
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equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Trust and Crestar on the one hand or is
supplied by, or on behalf of, such holders, such placement or sales agents, if
any, and such underwriters, if any, on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust, Crestar and such holders, such placement
or sales agents, if any, and such underwriters, if any, agree that it would not
be just and equitable if contributions pursuant to this paragraph were
determined pro rata (even if such holders, such placement or sales agents, if
any, and such underwriters, if any, were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to in this paragraph. Notwithstanding the
provisions of this paragraph, such holders, such placement or sales agents, if
any, and such underwriters, if any, shall not be required to contribute any
amount in excess of the amount by which the total price at which the Securities
referred to in the second sentence of this paragraph that were offered and sold
to the public through such holders, such placement or sales agents, if any, and
such underwriters, if any, exceeds the amount of any damages that such holders,
such placement or sales agents, if any, and such underwriters, if any, have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled under this paragraph to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls any such holders, such placement or sales agents, if any,
and such underwriters, if any, within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such holders, such placement or sales agents, if any, and such underwriters, if
any, and each person, if any, who controls the Trust or Crestar within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Trust or Crestar.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate Liquidation Amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Trust and Crestar.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
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attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) CONSOLIDATED EARNINGS STATEMENTS. In the event of an underwritten
offering, Crestar agrees to make generally available to holders of Securities as
soon as practicable, but in any event not later than eighteen months after the
effective date of the applicable registration statement (as defined in Rule
158(c) under the Securities Act), a consolidated earnings statement of Crestar
(which need not be audited) complying with Section 11 (a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
Crestar, Rule 158 under the Securities Act)
8. RULE 144.
Crestar covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, Crestar shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including, but not limited to, the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to make Rule 144 available to such holder for the
sale of Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities in connection with that holder's
sale pursuant to Rule 144, Crestar shall deliver to such holder a written
statement as to whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT Agreements. Each of the Trust and Crestar represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this Exchange
and Registration Rights Agreement and that the Debenture Exchange and
Registration Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
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(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: First Bank System, Inc.,
First Bank Place, 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 and if
to a holder, to the address of such holder set forth in the security register or
other records of the Trust, or to such other address as any party may have
furnished to the others in writing in accordance herewith, except that notices
of change of address shall be effective only upon receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and assigns of
the parties hereto. In the event that any transferee of any holder of
Registrable Securities shall become a holder of Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Exchange and
Registration Rights Agreement. If Crestar shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer. In addition, the
respective indemnities, representations and warranties set forth herein shall
survive the termination hereof.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
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(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration Rights
Agreement and the other agreements referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement and such other agreements referred to herein supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by Crestar, the Trust
and the holders of at least 66-2/3 percent in aggregate principal amount of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the registered holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of Crestar
at the address thereof set forth in Section 9(c) above.
(j) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
(k) TERMINATION. Except for the respective indemnities, representations
and warranties set forth herein, this Agreement shall terminate when all the
Securities, Exchange Securities and Registrable Securities cease to be
outstanding.
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This Agreement is hereby executed as of the day and year first above written.
CRESTAR FINANCIAL CORPORATION
By:_____________________________
Name:
Title:
CRESTAR CAPITAL TRUST I
By:_____________________________
Administrator
XXXXXX XXXXXXX & CO.
As Representative of the Purchaser
Named in Schedule I to the Purchase
Agreement
By:_____________________________
(Xxxxxx Xxxxxxx & Co.)
Acting severally, and not jointly and
severally, on behalf of themselves and
each of the Purchasers named in
Schedule I to the Purchase Agreement
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